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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DACK ANTHONY LITTLE

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1856 MDA 2019 Appeal from the Judgment of Sentence Entered June 14, 2019 In the Court of Common Pleas of Juniata County Criminal Division at No(s): CP

- 34

- CR

- 0000224

- 2017

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 27, 2020
Appellant, Dack Anthony Little, appeals from the judgment of sentence
entered in the Juniata County Court of Common Pleas, following his bench trial
convictions for driving under the influence of alcohol (“DUI”)

— general
impairment 1 and summary traffic offenses

. We affirm the convictions, vacate
the judgment of sentence, and remand for resentencing

. The relevant facts and procedural history of this appeal are as follows.

A t approximately 9:49 p.m. o n Au gust 31, 2017, Pennsylvania State Police
Trooper Christopher Wilson was on patrol when he observed a Ford Explorer
ignore a stop sign. Trooper Wilson followed the vehicle , activated the lights
on his patrol car , and conducted a traffic stop.

_________________ __________ ______ ____ _______

1 75 Pa.C.S.A. § 3802(a)(1).J

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Trooper Wil son approached the driver’s side of the vehicle. Appellant
occupied the driver’s seat, and there were no passengers. Trooper Wilson
informed Appellant of the reason for the stop, and he asked Appellant for his

driver’s license, registration, and proof of insurance. Appellant apologized for
not stopping at the stop sign, and Trooper Wilson noticed a strong odor of
alcohol coming from inside the vehicle. Further, Appellant’s eyes appeared
bloodshot and his speech was slurred.
Trooper Wilson aske d Appellant to exit the vehicle, and Appellant
complied. Upon exiting, Appellant lost his footing and stumbled. Trooper
Wilson asked Appellant if he would perform a standard field sobriety test.
Trooper Wilson proceeded to conduct the horizontal gaze ny stagmus test.
Trooper Wilson then asked Appellant to perform the “walk and turn” test.
Appellant took a step, stumbled to the right, and requested a breath test

instead. At that point , Trooper Wilson took Appellant into custody for DUI and
transported h im to a local hospital.
On December 4, 2017, the Commonwealth filed a criminal information
charging Appellant with DUI

— general impairment and related traffic offenses.
Appellant proceeded to a bench trial, and the court found Appellant guilty of

all cha rges. On June 14, 2019, the court conducted Appellant’s sentencing
hearing and determined the current DUI conviction was Appellant’s “ secondJ

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offense for sentencing and a refusal situation

. ” 2 (Order, entered 6/14/19, at
1). Consequently, t he court senten ced Appellant to a mandatory term of five
(5) days to six (6) months’ imprisonment , pursuant to 75 Pa.C.S.A. §
3804(a)(2). Appellant timely filed post

- sentence motion s on June 21, 2019,

which t he court denied by order dated October 2 1 , 2019.
Appellant t imely filed a notice of appeal on November 14, 2019. On
November 18, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant timely filed
his Rule 1925(b) statement on November 25, 2019

. Appellant now raises two issues for our review:
Was the evidence presented at trial legally insufficient to support the guilty verdict with respect to the charge under 75 Pa.C.S. A. § 3802(a)(1) as the Commonwealth’s evidence failed to establish beyon d a reasonable doubt that [Appellant] had imbibed a sufficient amount of alcohol to render him incapable of safely operating the movement of his vehicle?
Did the sentencing court err in denying [Appellant’s] p ost

s entence m otion which sought to treat his DUI offense as a first offense for sentencing purposes as 75 Pa.C.S. A. § 3806 is unconstitutional pursuant to Apprendi v. New Jersey , [ 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 ] (2000), and Alleyne v. United States , [ 570 U.S. 99, 133 S.Ct. 2151, 18 6 L.Ed.2d 314 ] (2013), and is not severable from 75 Pa.C.S. A. § 3804 and 75 Pa.C.S. A. § 3803?
(Appellant’s Brief at 4 ).

_________________ __________ ______ ____ _______

2 “[Appellant’s] first DUI offense was in 2010 and he received Accelerated Rehabilitation Disposition [(“ARD”)] for that offense.” (Trial Court Opinion, filed January 7, 2020, at 1).J

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In his first issue, Appellant argues the Commonwealth did not

demonstrate that he “struggled with his ambulatory or other motor ski lls
beyond an initial struggle to get out of the vehicle

. ” (Appellant’s Brief at 10).
Appellant claims he had no trouble interacting with the trooper , he was not
belligerent , and he easily retrieved his vehicle’s paperwork. Appellant asserts
he requeste d a breath test to demonstrate that he was not intoxicated, but
the trooper did not perform the test

. Other than a single instance of failing to
obey a stop sign, Appellant insists the t rooper did not observe circumstances
demonstrating that Appellant was incapable of safe driving. Based upon the
foregoing, Appellant concludes the Commonwealth presented insufficient

evidence to support his DUI conviction. We disagree.
With respect to Appellant’s sufficiency claim:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact

- finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact

- finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every po ssibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact

- finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwea lth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be con sidered. Finally, the [finder] of fact while passing upon the credibility ofJ

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- witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Jones , 874 A.2d 108, 120

- 21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).

The Motor Vehicle Code defines the offense of DUI as follows : § 3802. Driving under influence of alcohol or controlled substance
(a) General impairment.
— (1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of th e vehicle.
75 Pa.C.S.A. § 3802(a)(1).

“ S ubsection (a)(1) is a general provision and provides no specific
restraint upon the Commonwealth in the manner in which it may prove that
an accused operated a vehicle under the influence of alcohol to a degree which
rendered him incapable of safe driving. ” Commonwealth v. Loeper , 541
Pa. 393, 402

- 03, 663 A.2d 669, 673

- 74 (1995).

The types of evidence that the Commonwealth may proffer in a subsection 3802(a)(1) prosecution include but are not limited to, the following: the offender’ s actions and behavior, including manner of driving and ability to pass field sobriety tests; demeano r, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech. Blood alcohol level may be added to this lis t, although it is not necessary....

* * *J

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- Regardless of the type of evidence that the Commonwealth proffers to support its case, the focus of subsection 3802(a)(1) remains on the inability of the individual to drive safely due to consumption of alcohol

— not on a particular blood alcoh ol level

. Commonwealth v. Segida , 604 Pa. 103, 115

- 16 , 985 A.2d 871, 879 (2009).
Instantly, Trooper Wilson conducted a traffic stop after watching
Appellant ignore a stop sign. Upon speaking with Appellant, Trooper Wilson
immediately detected a strong odor of alcohol. Trooper Wilson also observed
Appellant’s bloodshot eyes and slurred speech

. W hen Trooper Wilson asked
Appellant to exit the vehicle, Appellant was unsteady on his feet

. Ultimately,
Appellant admitted to drinking “two beers, three beers, give or take” earlier
that day. ( N.T. Trial, 2/5/19, at 46 )

. Here, the trial testimony established the indicia of intoxication necessary
for the fact finder to conclude that Appellant was unable to drive safe ly. See
Segida, supra ; 75 Pa.C.S.A. § 3802(a)(1)

. Viewing this evidence in the light
most favorable to the Commonwealth as the verdict winner, sufficient
evidence supported Appellant’s DUI conviction. See Jones, supra

. Accordingly, Appellant is not entitled to relief on his first claim.
In his second issue, Appellant contends the court found that his
acceptance of ARD in 2010 was a “ prior offense ” for purposes of imposing a mandatory minimum DUI sentenc e . Appellant complains the relevant

s t a tutory scheme is unconstitutional , because it requires a court to impose a
mandatory sentence based upon facts that are not submitted at trial andJ

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proven beyond a reasonable doubt. Additionally , Appellant maintains the ARD

program and its admission process lack the procedural safeguards of a

“ conviction ” following trial, and his prior ARD acceptance should not constitute
a “prior offense” to trigger the imposition of a sentence under Section 3804

. Appellant conclude s his sentence is illegal

. In light of this Court’s recent case
law, we agree. The relevant standard and scope of review are as follows:
[T]he determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary. This case will also necessarily call upon us to engage in statutory construction, which similarly presents a pure question of law and also implicates the legality of [the] sentence. Thus, our sta ndard of review is de novo and our scope of review is plenary.

Commonwealth v. Hunt , 220 A.3d 582, 585 (Pa.Super 2019) ( internal

citations and quotation marks omitted).
Section 3804 of the Motor Vehicle Code provides the following
mandatory sentencin g provisions:

§ 3804. Penalties
(a) General impairment.
— Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:

* * *
(2) For a second offense, to:
(i) undergo imprisonment for not less than five days;J

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75 Pa.C.S.A. § 3804(a)(2) (i)

. Additionally, Section 3806 defines the term “prior offense” as follows : § 3806. Prior offenses
(a) General rule.
— Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance)
75 Pa.C.S. § 3806 (a)(1)

. Recently, this Court addressed the constitutionality of Section 3806 in

Commonwealth v. Chichkin , __ A.3d __, 2020 PA Super 121 (filed May 20,
2020) . There, two appellants received Section 3804 mandatory sentences for

DUI

— general impairment , because b oth appellants had accepted ARD in
conjunction with a prior DUI offense. On appeal, t he appellants argue d the

relevant statutory scheme was unconstitutional , because it d id not provide the
procedural protections mandated by Alleyne for the factual determination
triggering the mandatory sentence

. See Chichkin , supra at * 2

. This Court determined that the defendants ’ “ prior acceptance s of ARD

do not constitute convictions cloaked in all t he constitutional safeguards, [and]

are a ‘fact’ that, pursuant to Alleyne , Apprendi , and their progeny, must be
presented to the fact finder and determined beyond a reason able doubt beforeJ

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a trial court may impose a mandatory minimum sentence under Section

3804. ” Id. at *8 (internal quotation marks and footnote omitted). The Court

also noted :

Due process considerations protect those accused of
comm itting a crime from co nviction except upon p roof beyond a reasonable doubt

. Under the statutory scheme at issue here, [the a]ppellants’ prior acceptances of ARD are treated as prior convictions of DUI, absent the constitutional protecti ons of a trial or guilty plea

— most significantly, a finding or admission of guilt beyond a reasonable doubt. Accordingly, if the Commonwealth seeks to enhance a defendant’s DUI sentence based upon that defendant’s prior acceptance of ARD, it must prove, beyond a reasonable doubt, that the defendant actually co mmitted the prior DUI offense. Any lesser standard would violate due process
concerns. Therefore, we conclude the particular provision of 75 Pa.C.S. § 3806(a), which defines a prior acceptance of ARD in a DUI case as a “prior offense” for DUI sentencing enhancement purposes, offends the Due Process Clause and is therefore unconstitutional. We thus further conclude [the a] p pellants’ constitutional rights were violated when the trial court increased their sentences based solely upon their prior acceptances of ARD, absent proof beyond a reasonable doubt that [the a] ppellants committed the prior offenses.

Chichkin

, supra at *10 (internal citation, quotation marks, and footnote
omitted)

. Instantly, the court imposed a Section 3804 mandatory sentence due to
Appellant ’s acceptance of ARD for a prior DUI offense

. ( See Trial Court
Opinion at 1 )

. In light of the relevant case law , the court violated Appellant’s
constitutional rights when it increased his sentence based solely upon his prior
acceptance of ARD, absent proof beyond a reasonable doubt that A ppellantJ

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actually committed the prior offense

. See Chichkin , supra

. Accordingly, w e
are constrained to vacate Appellant’s DUI sentence and remand this c ase for
resentencing consistent with the mandates of Chichkin

.
Conviction s affirmed; judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/27/2020